Haslam v Money for Living (Aust) Pty Ltd

The case of Haslam v Money for Living (Aust) Pty Ltd dealt with issues of priority between various interests in land, including the interests of retirees as tenants in possession, a mortgagee, and the purchaser of land. The dispute centred around the interpretation of certain clauses in a mortgage and the effect of registration of transfers and mortgages on the priority of interests. The court was required to determine whether certain clauses in the mortgage could be interpreted as consent to subsequent mortgages overriding the interests of the retirees, and whether the registration of the mortgage simultaneously with the transfer of land affected the priority of the retirees' interests.

The central legal issue was the interpretation of Clause 1.9 of the mortgage and its effect on the priority of interests. The retirees argued that Clause 1.9 did not specifically refer to Perpetual or indicate any existing mortgagee, and therefore did not consent to a later mortgage overriding their interests. Perpetual, on the other hand, contended that the registration of the mortgage simultaneously with the transfer of land meant that the retirees' interests were only created upon registration and were subject to the mortgage. The court had to ascertain whether Clause 1.9 affected the factual position of when the mortgage and lease were created, and whether the registration of the mortgage and transfer of land determined the priority of interests.

The court found that Clause 1.9 did not refer specifically to Perpetual or indicate any existing mortgagee, and therefore did not consent to a later mortgage overriding the retirees' interests. The court also found that Clause 1.9 did not affect the ascertainment of the factual position of when the mortgage and lease were created. If the lease was created prior to the mortgage, then Clause 1.9 would have no impact on the issues raised in the proceeding. If the lease was created after the mortgage, then Perpetual would be entitled to priority assuming the subsequent arrangement was a lease for the purposes of the relevant statutes and came within the scope of Clause 8 of the common provisions of the mortgages. The court further found that the registration of the mortgage simultaneously with the transfer of land did not affect the priority of the retirees' interests as tenants in possession.

The orders of the court were that the parties were to confer and file submissions on the orders sought, including as to costs, by a specified date. If the parties could not agree, they were to file submissions on the orders sought.